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presidents and the use of executive orders is government professor andrew. professor, thank you so much for being with us this morning. >> great to be with you. >> we will start by talking about an overview of executive orders. tell us what they are and what gives a president the power to use them? >> executive orders are not in the constitution explicitly but they flow pretty directly from the president's power in article two of the constitution to faithfully execute the law and grant the executive power to the president at the beginning of article two. presidents have used them since the beginning of the republic, every president has issued at least one executive order. even william henry harrison, who died quickly after taking office. they are pretty well accepted. they are essentially orders to

the executive branch. an executive orders, formally are published in the federal register and often produced with great pomp and circumstance but we should keep in mind they are only part of a whole category of executive actions and directives the president can use. this include memoranda and national security directives. they include even guidance documents to agencies about what kinds of regulations to issue, so executive orders are probably the most formal of this category of presidential directives but there are many others and they get mixed up together in kind of a jumble. >> this is a topic you are familiar with and you are the author of the book by executive order, bureaucratic management, and the limits of presidential power. oftentimes, we do hear that it is the president issuing an executive order but there is a process. there is not involved in the creation. talk to us about who is involved

in putting together an executive order, and what the process looks like. >> the final product, what we see on tv sometimes, is the president signing and then holding up, you know, perhaps a sharp bead signature, a folder containing a new executive order but is often a long back story to that directive. anyone really can propose an executive order in the white house, out in the various executive agencies. for a long time since the 1930's, there has been a process sometimes called central clearance. it is sort of a peer review process. and that is, you know, a managerial agency created back in the 1920's and really has been a key presidential agency since the 1930's and their job is to receive these draft executive orders wherever they calm, send them out to different agencies who might have an interest, get feedback, find out

will this actually work? importantly, the department of justice is supposed to take a look at all executive orders for form and legality to make sure that the order has been properly formatted but also legal under the president's powers. it is worth noting that an executive order can only do something the president has the power to do, whether that power is in the constitution directly or has been delegated to the president through an act of congress so there are sometimes arguments about whether an executive order does in fact go too far. those orders will go to court, in science. the internal process is quite multilateral. we think of this as unilateral action but it is very rarely the president sitting down to issue the order. there is a big bureaucratic back story and that is intentional. it is to make sure the expertise about the subject matter is actually brought to bear on the order itself. >> we are talking with professor

andrew, a professor of government at bowdoin college. we are talking to him about the use of executive orders. he will be with us for the next 40 minutes or so. if you have a question or comment for him, you can start calling in now. democrats, 202-748-8000. republicans, 202-748-8001. independents, 202-748-8002. professor, i wanted to ask you and you mentioned it and you might see it on tv, a president signing an executive order and holding it up for the camera. what happens once that is signed and when does it go into effect? guest: well, i hate to use the academic answer, but it depends. it depends on what the order says. sometimes they are self-executing. they might change something administratively within an

agency. not all executive orders are big, sweeping or important. others might ask an agency to work on solving a problem and look at an issue in a whole of government sense. sort of a planning to make plans kind of order. those might not have much immediate impact at all, although they serve the purpose of a president showing that he cares about an issue and wants to take action. it depends on who is being ordered to do what in terms of what happens next. we know that the presidents

often complain that executive orders are not fully implemented. this is hard to study because once the order leaves the public pages of the federal register and goes down pennsylvania avenue into one of the government office buildings we do not quite see it as academics or often even as members of congress or political actors. we know that not all executive orders are fully implemented. we know that some are not meant to be fully implemented. some are for show. if you look at the text over the last number of years, really starting with the obama administration but ramping up significantly under trump and biden, you have long sections at the beginning of the orders which are essentially press releases, preambles or policy sections that lay out what the president wants to achieve and it is not actually clear that it being achieved is the important part. the president wants to say i am ordering this to be done and if it does not get done there is some hope that the public might not notice that as romantically. host: an executive order is enforceable as long as the action is within the president's constitutional authority. give us an example of something that will fall within and without that authority. guest: let me just say that executive orders are literally orders to the executive branch. so, a member of the public would not receive an order from the

president in that form. indeed, the president does not have the power to order you to do anything unless you are an active member of the armed services. the general rule is that presidents are relying on the power of federal government to have knock on effects that will have effects on the wider public. a good example is contracting procurement. presidents for a long time have taken advantage of the fact that the federal government buys a lot of stuff from the private sector to place conditions. john f. kennedy issued an executive order designed to prevent any federal contracts going to those who discriminated in the area of housing. we have seen other uses in the civil rights arena to try and limit the contracts that go out. if you and the private sector want to federal contracts, you have to pay attention to the conditions placed on that.

so, it is not a general order to the public but it has sweeping impact when you are talking about half a trillion or more of funding that is going out from the federal government to the private sector. president obama, for example did not get a minimum wage increase through congress, but he did order the federal contracts only go to federal contractors who paid a certain minimum wage. as the president is contractor and chief he has the authority to do that may be the most famous example of an order that was overturned is harry truman's back in the early 1950's during maybe the most famous example of an order that was overturned is harry truman's back in the early 1950's during the korean war. he had ordered that the steel

mills be nationalized and be brought into american governmental ownership because there was a threatened strike. so the famous steel seizure case results. truman argued that a strike would really harm national security, that it would undermine the korean war effort. and, therefore using his powers he said as commander-in-chief, he could order that the steelworkers effectively became federal employees and unable to strike. this obviously went to the court, and the supreme court famously ruled that no, indeed, president truman had overstepped his powers, this was not something that he could do. and, therefore steel mills returned to private ownership and labor negotiations proceeded on that basis. so, you could have some pretty high-stakes, high drama confrontations over executive orders, or they could just be administrative housekeeping.

it varies quite a lot. host: we have callers waiting to ask you questions. we will start with fred in pennsylvania, line for democrats. good morning. caller: good morning. what i would like to say that if a president uses executive orders to legislate his entire presidency, as donald trump did his first presidency and intends to do in his second, he will bypass the house and senate. now, if the senate and the house are republican and he has a republican supreme court, and he can get away with being a dictator. this is something that should be stopped immediately. we should get rid of executive orders except in the case of environmental protection and a national emergency to protect the country, not to legislate his own personal agenda that he makes up in his campaign. this is what i would like to say and i would like to get your opinion on this. thank you. guest: sure. i will say a couple things. first, a big shout out to camp hill, pennsylvania.

i used to live in carlisle, up the street. and yeah, the charge of dictatorship is a long-standing one. there was a book about franklin roosevelt called "roosevelt: democrat or dictator," back in the 1940's. when i dug into the presidential libraries for my book research, i found that there were in some administrations form letters that they had developed when people wrote in saying this is a dictatorial action you are taking and there is an explanation, not even so much of the action, but of the role of executive orders. again, executive orders are only legal when they are applying actual presidential power. when they are grounded in powers the president has. one thing that has increased their appeal, i guess, to presidents, first of course we know that congress finds it hard to act, especially in its current polarized version.

but, congress has also delegated a lot of power to presidents over time. often when we see a president using an executive order to try and guide the actions of a federal agency, they are looking back to old statutes. and, there are plenty of those on the books. and some of them, honestly, should be reined in. you think about the national emergencies act, that grants the president an awful lot of authority to declare a national emergency and then to issue executive orders under some statutes that are unlocked by virtue of that declaration. we could look at something like the insurrection act, we could look at things going back on immigration. when we look at for example president trump's travel ban in his first term. the first version of that that caused chaos at the beginning of 2017, was in fact withdrawn and replaced. it had not gone through the process of bureaucratic feedback that i had talked about, and it

did not work. it went through a couple of other iterations and finally emerged later as a proclamation, not an executive order. it went to the supreme court and the supreme court said it is ok because the way the law was written, i believe the phrase is it "exudes deference" to the president. so if congress are going to pass laws that exude deference to the president, we have to accept that presidents will take advantage of that. i would place a lot of the concern with congress being unwilling to fulfill its own constitutional imperatives in a lot of areas and instead handing off that power to the president. host: this is coming in on x from jimbo in bakersfield, california. he is an independent and says, "what happens when a legal executive order conflicts with laws within a state, like california?"